A correspondent says:

I was watching some footage on YouTube of Victorian CFA tankers driving code 1 through western Sydney on their way to the Blue Mountains fires. And it got me wondering – what’s the status of interstate vehicles driving code 1 in NSW (or other states, for that matter)? They wouldn’t be formally recognised under NSW law as emergency vehicles, would they?

That’s an interesting question and we should start with a practical question – how would this issue arise for determination? The only way it will become an issue is if a driver was issued a traffic infringement notice (“TIN”) for some minor driving offence. (Remember that the Australian Road Rules only exempts the drivers of emergency vehicles from the Road Rules not major driving offences, so if there were a serious accident these provisions are not really relevant).

First a police officer is unlikely to issue a TIN when the CFA are responding to fires such as those in the Blue Mountains, and if they did I’m sure it would be the police officer who would be in trouble for doing highway patrol duties rather than assisting in the emergency. Here the law is hardly relevant; but let us assume for the sake of the argument a TIN is issued, perhaps as a result of a red light or fixed speed camera.

If the driver pays the fine that’s the end of the matter. If they write to the Commissioner of Police asking him to withdraw the TIN, or elect to take the matter to court then, and only then, does it become an issue. The art of advocacy involves giving the decision maker an argument to justify the decision they want to reach. A magistrate would want to ensure that a CFA driver did not pay a red light or fixed speed camera TIN (– you could not be so confident if the allegation was some sort of reckless or dangerous driving). The Commissioner and the Magistrate’s need to be able to point to law to show that whatever decision they make is in accordance with the law and not some sort of favouritism. They need to be able to say to another, hypothetical driver who was picked up by the same camera, why the CFA driver is let off, but they are not (and I note that is why I give references in these posts – I don’t really expect many people go and read them, but to show that this is not fiction, there is actual law that applies).

So what arguments are there; first are driving in NSW so it’s the NSW Road Rules that are relevant. In NSW an emergency vehicle is a vehicle driven by an emergency worker as part of their duties. An emergency worker is

(a) a member of the Ambulance Service rendering or providing transport for sick or injured persons, or
(b) a member of a fire brigade, rural fire brigade or the State Emergency Service providing transport in the course of an emergency, or
(c) a person (or a person belong to a class of persons) approved by the Authority.(Road Rules 2008 (NSW), Dictionary, definition of ’emergency worker’)

Who or what is a ‘fire brigade’ is not defined. The CFA operates fire brigades (Country Fire Authority Act 1958 (Vic) s 23) so the drivers of the CFA pumpers are members of a fire brigade (it doesn’t matter whether you classify them as members of a fire brigade or a rural fire brigade) so they are emergency workers and hence their vehicles are emergency vehicles and rule 306 of the Road Rules 2008 (NSW) will apply and they are exempt from the provisions of the road rules where that is reasonable and they were displaying flashing red or blue lights or sounding a siren.

But can their vehicles have red/blue lights and a siren? First the vehicles do not need to be registered in NSW (Road Transport (Vehicle Registration) Regulation 2007 (NSW), Schedule 1, Clause 9). So if they are lawfully fitted with lights and sirens in Victoria, they are allowed to travel in NSW with those devices fitted.

The driver’s also don’t need a NSW licence as NSW gives full recognition to interstate licences so whatever they are licensed drive on Victorian roads, they are also allowed to drive on NSW roads (Road Transport Act 2013 (NSW) s 29 and Schedule 4, clause 8; Road Transport (Driver Licensing) Regulation 2008 (NSW) s 99).

Are they allowed to use the lights and sirens? There is actually no law that says when they may be used – the issue in rule 306 is that it is reasonable that the Road Rules don’t apply and the warning devices are being used; and they must only be used “whilst driving the vehicle in the course of his or her duties as an emergency worker” (and this relates to earlier discussions about how it is up to the service to determine what someone’s duties are). So, unless the police can prove, beyond reasonable doubt, that the driver was not acting in the course of his/her duties and it was an emergency, the use of lights and sirens will be lawful and rule 306 could apply. Identifying what was their duties could involve discussion about the arrangements between RFS and CFA and what directions the driver was given by COMCEN or relevant officer. There could be is no doubt, given that there was a state wide declaration, that this was an emergency. So I suspect any Magistrate is going to find that if they were proceeding to an allocated task, they were performing their duties and this was an emergency.

It may be also, that the Roads and Maritime Services (the Authority) had given express approval to the CFA so that their drivers belonged to a ‘class of person’ approved by the Authority as emergency workers. I don’t know if that did happen, but it could have.

Finally given the state of emergency, the Minister for Police and Emergency Services “… may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function.” The courts and judges are not a ‘government agency’ and cannot be directed by the Minister, but the police force is (State Emergency And Rescue Management Act 1989 (NSW) s 3, definition of ‘government agency’). A constable, on the other hand, is an independent officer exercising very ancient rights, rights that predate the establishment of a police force, and generally speaking no-one can direct a constable on how to exercise his or her office, so the Minister may be able to direct the Police Force but may not be able to direct an individual constable on whether or not to exercise his or her independent law enforcement powers. If that’s true the Minister could not ‘direct’ a police officer not to issue the TIN nor could the Minister direct a Magistrate not to hear the case or to dismiss it. The Minister could, however, direct the Roads and Maritime Services to issue an authority under the Road Rules 2008 (NSW) if one was required, he could direct the NSW Police Force to allocate resources to the emergency response and away from Highway Patrol duties and, perhaps, he could direct the Commissioner of Police not to proceed with any prosecutions where TIN’s had been issued.

So the short answer is, given the definition of emergency worker in the Road Rules 2008 (NSW), members of the CFA are emergency workers and have all the exemptions of NSW fire fighters. They can drive their CFA vehicles in NSW, relying on their Victorian licences and can expect to be exempt the road rules provided they are taking reasonable care; it is reasonable that an exemption applies and if their vehicle is moving it is displaying a blue or red flashing light or sounding an alarm (Road Rules 2008 (NSW) r 306).

Michael Eburn
30 October 2013